Federal Efforts*

Emergency Paid Sick Leave

Under the Families First Coronavirus Response Act (FFCRA), employers with fewer than 500 employees must provide up to two workweeks of job-protected, immediately-available paid sick days for certain COVID-19-related medical and caregiving needs. These provisions will be in effect from April 1, 2020, until December 31, 2020, after which they will expire.

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to federal, state, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to federal, state, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the secretaries of the Treasury and Labor.

As of April 1, 2020, employees, regardless of hours of work or length of service with the employer, are immediately eligible for emergency paid sick leave unless they are health care providers, first responders, or certain federal executive branch employees.

Immigrant Eligibility

There are no immigration status–related restrictions on eligibility for paid sick leave; employees are entitled to paid sick leave regardless of their immigration status.

Paid Expanded Family and Medical Leave (PFML)

The FFCRA temporarily extends Family and Medical Leave Act (FMLA) leave to include needed to care for an employee’s minor child whose school or care provider is unavailable due to a COVID-19 public health emergency. Under the FFCRA, leave is paid at two-thirds the employee’s regular rate of pay. Expanded paid family and medical leave is available to qualifying employees for up to 12 weeks. Here are the criteria eligibility and protections:

Up to an additional 10 weeks of PFML at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Employees must have been employed by their current employer for at least 30 calendar days before going out on PFML. While employees whose employers have shut down due to COVID-19 orders are generally not eligible for expanded PFML, a provision in the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) clarifies that employees who were laid off by an employer on March 1, 2020, or later may be able to use PFML if they are subsequently rehired by their employer.

Immigrant Eligibility

There are no immigration status–related restrictions on eligibility for expanded paid family and medical leave; employees are entitled to PFML regardless of their immigration status.

Tax Credits for Self-Employed Workers

The FFCRA creates a new refundable income tax credit for self-employed individuals who are unable to perform services and must take time away from work for the same reasons covered under the Emergency Paid Sick Leave and Paid Expanded Family and Medical Leave provisions. The limitations on pay and length of leave that apply to employees are the same for self-employed individuals — they may take up to 10 days of paid sick leave, or up to 50 days (10 weeks) of paid family medical leave, with different pay rates depending on the reasons for taking leave. These credits will apply to qualifying leave taken between April 1 and December 31, 2020.

The IRS is expected to issue guidance on the documentation requirements and will likely post that guidance at its website here: https://www.irs.gov/coronavirus. Self-employed individuals can claim the credits on their income tax return and reduce estimated quarterly tax payments in the meantime.

Immigrant Eligibility

Of note for immigrant tax filers, the FFCRA does not restrict access to these tax credits based on the type of taxpayer identification number used by a self-employed individual.

Unemployment Insurance

Extends regular unemployment insurance benefits by an additional 13 weeks beyond what states currently offer;

Institutes a completely new program designed to cover workers left out of regular state Unemployment Insurance (UI) programs or who have exhausted their state UI benefits, which will last until December 31, 2020, unless otherwise extended;

Provides income support to self-employed workers, including independent contractors and freelancers, workers seeking part-time work, and workers who do not have a work history that is long enough to qualify them for state UI benefits;

Adds a $600 boost to the weekly payments that individuals will receive under both programs through July 31, 2020.

UI benefits are included in a person’s adjusted gross income for the purposes of determining eligibility for means-tested public benefits programs such as Medicaid, Temporary Assistance for Needy Families (TANF), or the Supplemental Nutrition Assistance Program (SNAP or food stamps).

Immigrant Eligibility

To receive regular unemployment insurance benefits, immigrants must be work-authorized at the time they file for benefits and during the entire period they are receiving benefits (the “benefits period”). Immigrants must also have been permanently residing under color of law (“PRUCOL”) during the “base period” used to calculate the benefit amount. Thus, anyone with a valid work permit, or whose immigration status allows them to work, and who was work-authorized during the base period should be eligible to receive regular unemployment insurance.¹

Please note: UI is an earned benefit, not a public benefit. So, under the DHS’s “public charge” rule, receiving it shouldn’t be a negative factor in the assessment of whether a visa or adjustment-of–status applicant is likely to become a public charge.

¹ The U.S. Department of Labor has not yet clarified the eligibility criteria that will apply to the new programs created by the CARES Act. It is possible that the Department of Labor will apply a more restrictive set of eligibility criteria to these programs.

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